Advanced Copyright Issues on the Internet - Fenwick & West LLP

The reach of Frena may be limited, however, because the BBS was apparently onedevoted to photographs, much of it of adult subject matter, and subscribers routinely uploadedand downloaded images therefrom. Thus, the court may have viewed Frena as a more directparticipant in the infringement, having set up a bulletin board that was devoted to the kind ofactivity that would foreseeably lead to infringement. The undisputed evidence of the presenceon the bulletin board of the plaintiff’s photographs, some of which had been edited to remove theplaintiff’s trademarks and to add Frena’s advertisements, was apparently evidence of sufficientinvolvement for the court to find direct infringement of the public distribution right. Similarly,Frena’s selection of the infringing content for inclusion in the bulletin board was apparentlysufficient involvement to find direct infringement of the public display right. 86In addition, as discussed in detail below, the legislative history of the Digital Millennium<strong>Copyright</strong> Act, which contains a number of safe harbors that address the issue of OSP liability,states that it was intended to overrule the Frena case, at least to the extent Frena suggested thatpassive, automatic acts engaged in through a technological process initiated by another throughthe facilities of an OSP could constitute direct infringement on the part of the OSP. 87 In a casedecided in 2001, the Fourth Circuit held that the Digital Millennium <strong>Copyright</strong> Act had indeedoverruled Frena “insofar as that case suggests that [passive, automatic acts engaged in through atechnological process initiated by another] could constitute direct infringement.” 88(e) The Webbworld CaseIn a case factually similar to Frena, a company operating a website was held directlyliable for the posting of copyrighted material on its site which could be downloaded bysubscribers. In Playboy Enterprises, Inc. v. Webbworld, Inc., 89 the defendant Webbworld, Inc.operated a website called Neptics, which made adult images available to subscribers who paid$11.95 per month. Over a period of several months, images became available through theNeptics website which were originally created by or for the plaintiff Playboy Enterprises, Inc.The court rejected the defendant’s argument that it could not be held directly liable forinfringement under the logic of the Netcom case. The court distinguished the Netcom case onthe ground that Netcom did not create or control the content of the information available to itssubscribers, but rather merely provided access to the Internet. In contrast, the court noted thatNeptics was receiving payment selling the images it stored on its computers, and therefore wasacting as more than merely an information conduit. 908687888990K. Stuckey, Internet and Online Law § 6.10[1][b], at 6-88 – 6-89 (2008).H.R. Rep. No. 105-551 Part 1, at 11 (1998).ALS Scan, Inc. v. RemarQ Communities, Inc., 239 F.3d 619, 622 (4 th Cir. 2001). A subsequent district courtcited with approval the Fourth Circuit’s decision on this point. See Costar Group Inc. v. Loopnet, Inc., 164 F.Supp. 2d 688, 695-96 (D. Md. 2001), aff’d, 373 F.3d 544 (4 th Cir. 2004).968 F. Supp. 1171 (N.D. Tex. 1997)Id. at 1175.- 34 -